Q.B.G. NO. 1780 OF A.D. 2003

CANADA

PROVINCE OF Saskatchewan

IN THE COURT OF QUEEN’S BENCH

JUDICIAL CENTRE OF REGINA

BETWEEN:

MORLEY LEONARD EVANS

PLAINTIFF

AND:

DR. JOHN N. ALPORT

and

MR. DEAN AST

and

DR. CHRIS ANNANDALE

DEFENDANTS

 

STATEMENT OF CLAIM

 

 

NOTICE TO DEFENDANTS

  1. The plaintiff may enter judgment in accordance with this Statement of Claim or such judgment as may be granted pursuant to the Rules of Court unless
  2. within 20 days if you were served in Saskatchewan

    within 30 days if you were served elsewhere in Canada or in the United States of American

    within 40 days if you were served outside Canada and the United States of America

    (excluding the day of service) you serve a Statement of Defence on the plaintiff and file a copy thereof in the office of the local registrar of the Court for judicial center above-named.

  3. In many cases a defendant may have the trial of the action held at a judicial centre other than the one at which the Statement of Claim is issued. Every defendant should consult his lawyer as to his rights.
  4. This Statement of Claim is to be served within 6 months from the date on which it is issued.
  5. This Statement of Claim is issued at the above named judicial centre the _____ day of __________________, 2003.

 

_____________________________

Deputy Local Registrar

CLAIM

  1. The plaintiff, Morley Leonard Evans, resides at ______, Regina, Saskatchewan.
  2. The defendant John N. Alport, hereafter Dr. Alport, is a physician who specializes in General Practice. At all times material to this action he practised his profession for gain first at his offices in the Pasqua Hospital and later at the Broad Street Clinic located at 2156 Broad Street, Regina, Saskatchewan.
  3. The defendant Dean Ast, hereafter Mr. Ast, is a pharmacist who operates the pharmacy known as Hill Ave. Drugs and at all times material to this action he practised his profession for gain at his place of business located at 3410 Hill Avenue, in Regina, Saskatchewan
  4. The defendant, Chris Annandale, hereafter Dr. Annandale, is a physician who specialized in General Practice who at all times material to this action practised his profession for gain at the Broad Street Clinic located at 2156 Broad Street, Regina, Saskatchewan.
  5. The pharmaceutical drugs Zocor (Simvastatin) and Lipitor (Artorvastatin) are members of a class of cholesterol-lowering drugs that are commonly referred to as "statins".

A. WITH SPECIFIC REGARD TO DR. ALPORT:

  1. The plaintiff states that on or about 10 December 1991, Dr. Alport diagnosed him with hypercholesterolemia following a blood test taken at Dr. Alport’s office in the Pasqua Hospital.
  2. The plaintiff states that on or about 7 January 1992, Dr. Alport prescribed the cholesterol lowering pharmaceutical drug Simvastatin, known by its trade name Zocor. Dr. Alport dispensed free samples as 10-mg tables that were to last approximately three months with the instructions that one tablet was to be taken each day after the evening meal.
  3. The plaintiff states that he reported to Dr. Alport by telephone severe pain in his muscles and joints which Dr. Alport diagnosed as "probably the flu" which Dr. Alport said would have to run its course since an antibiotic would be of no use and no other treatment was available.
  4. The plaintiff states that he believes his condition was in fact myalgia the direct consequence of Zocor.
  5. The plaintiff further states that the defendant, Dr. Alport, on or about 16 April 1992, ignoring the plaintiff’s continuing complaints of general pain and fatigue, wrote a prescription for 10-mg tablets of Zocor which were then dispensed by Hill Ave. Drugs.
  6. The plaintiff further states that the defendant, Dr. Alport, on or about 5 August 1992, wrote a second prescription in his office in the Pasqua Hospital for Zocor, doubling its strength to 20-mg and prescribing the pharmaceutical antidepressant Amitriptyline, also known as Elavil, to relieve pain. Hill Ave. Drugs dispensed these prescriptions and sold them to the plaintiff.
  7. The plaintiff states that he continued to see Dr. Alport in his offices in the Pasqua Hospital. Then, after Dr. Alport moved, he continued to see him at his new office in the Broad Street Clinic until Dr. Alport terminated this doctor / patient relationship when he sold his practice to Dr. Annandale.
  8. The plaintiff further states that he took Zocor as prescribed from January 1992 until May 1998 and that all prescriptions for Zocor and other pharmaceuticals were written by Dr. John N. Alport and that they were dispensed by Hill Ave. Drugs. The plaintiff’s complaints of pain were ignored or misdiagnosed for six years and four months. The plaintiff’s condition improved only when he stopped taking Zocor in May 1998.
  9. The plaintiff states that the defendant, Dr. Alport, is guilty of negligence, improper conduct and or breach of contract, that he failed to discharge his respective duties with reasonable care, skill and diligence with respect to the treatments, attendance, care and advice he gave to the plaintiff, and that the defendant failed to take reasonable care and was negligent and careless, the particulars of which are as follows:
  10. The defendant failed to inform or disclose to the plaintiff the nature, gravity and material risks of the pharmaceutical drug Zocor and to adequately advise the plaintiff as to alternative treatments that were available. The defendant told the plaintiff there were no side effects when he prescribed Zocor;
  11. The defendant chose to ignore or failed to make himself aware of the warnings and actions prescribed by Merck, the manufacturer of Zocor, in the published physicians’ monographs that were available to the defendant at the time he prescribed the drug;
  12. The defendant, when informed of the plaintiff’s condition, failed to act appropriately, or at all, as required in the circumstances and failed to provide appropriate or adequate treatments – namely to withdraw the drug Zocor;
  13. The defendant failed to properly diagnose the unsuitability of Zocor for the plaintiff and to instruct the plaintiff to discontinue Zocor despite repeated opportunities for him to do so during the six years and four months that the plaintiff took Zocor while he was under the defendant’s care;
  14. In the alternative, the plaintiff states that he entered into a contract with the defendant and that a term thereof, or one that may reasonably be applied therein, was that the defendant would take all necessary precautions to ensure his safety and well being and, moreover, that he would exercise all reasonable skills and use all due and reasonable care, to assure his safety and well-being;
  15. The defendant failed in his contractual duty to the plaintiff and in this regard the plaintiff repeats all of the allegations of fact cited in this Statement of Claim;
  16. The plaintiff further repeats all the allegations of fact cited herein above mutatis mutandis with respect to the administration of the pharmaceutical drug Zocor.

B. WITH SPECIFIC REGARD TO MR. AST:

  1. The plaintiff states that on or about 16 April 1992, the defendant’s pharmacy, Hill Ave. Drugs, filled the prescription that was written by Dr. Alport to dispense Zocor to the plaintiff and that the defendant’s pharmacy continued to do so periodically for the next six years.
  2. The plaintiff states that Zocor was missing from the pharmacological list prepared for him by Hill Ave. Drugs that purported to represent a complete list of drugs Hill Ave. Drugs had dispensed to him. This prevented Dr. Frederick T. Cenaiko from correctly diagnosing the plaintiff’s condition when the plaintiff saw him on or about 1 May 1998 and then prevented Dr. M.W. Montbriand from correctly diagnosing the plaintiff’s condition when the plaintiff saw him the next year on or about 13 May 1999.
  3. The plaintiff states that the defendant, Mr. Ast, is guilty of negligence, improper conduct and or breach of contract, that he failed to discharge his respective duties with reasonable care, skill and diligence with respect to the advice he gave or failed to give to the plaintiff, and that the defendant failed to take reasonable care and was negligent and careless, the particulars of which are as follows:
  4. The defendant failed to inform or disclose to the plaintiff the nature, gravity and material risks of the pharmaceutical drug Zocor and to adequately advise the plaintiff as to alternative treatments that were available;
  5. The defendant chose to ignore or failed to make himself aware of the warnings and actions prescribed by Merck, the manufacturer of Zocor, in the published physicians’ monographs that were available to the defendant at the time he dispensed the drug;
  6. The defendant, when informed of the plaintiff’s condition, failed to act appropriately, or at all, as required in the circumstances and failed to provide appropriate or adequate advice – namely to withdraw the drug Zocor;
  7. The defendant failed to properly diagnose the unsuitability of Zocor for the plaintiff and to instruct the plaintiff to discontinue Zocor despite repeated opportunities to do so during the six years and four months that the plaintiff took Zocor while he sold the drug to the plaintiff;
  8. In the alternative, the plaintiff states that he entered into a contract with the defendant and that a term thereof, or one that may reasonably be applied therein, was that the defendant would take all necessary precautions to ensure his safety and well being and, moreover, that he would exercise all reasonable skills and use all due and reasonable care, to assure his safety and well-being;
  9. The defendant failed in his contractual duty to the plaintiff and in this regard the plaintiff repeats all of the allegations of fact cited in this Statement of Claim;
  10. The plaintiff further repeats all the allegations of fact cited herein above mutatis mutandis with respect to the administration of the pharmaceutical drug Zocor.
  11. The plaintiff alleges the defendant, Mr. Ast, committed criminal malfeasance falsifying the records of Hill Ave. Drugs by expunging from them the Zocor that was prescribed by Dr. Alport and dispensed to the plaintiff by Hill Ave. Drugs between April 1992 and April 1998.

C. WITH SPECIFIC REGARD TO DR. ANNANDALE:

  1. The plaintiff states that Dr. Annandale took over his care from Dr. Alport at the Broad Street Clinic on or about 22 June 1999.
  2. The plaintiff states that on or about 4 February 2000, the defendant Dr. Annandale had his clinic take from the plaintiff fasting blood samples and stool samples to be tested for indications of hypercholesterolemia.
  3. The plaintiff states that on or about 16 February 2000 the defendant, Dr. Annandale, reported to the plaintiff that he had extremely high cholesterol levels, but everything else was normal. The defendant prescribed the cholesterol lowering pharmaceutical drug Atorvastatin, also known as Lipitor, and gave him a three-month supply of free samples.
  4. The plaintiff states that on 12 May 2000 another fasting blood sample was taken at the Broad Street Clinic.
  5. The plaintiff states that on or about 17 May 2000, the defendant reported to the plaintiff that his cholesterol levels were better than normal since the introduction of Lipitor and that the plaintiff’s testosterone level was normal with the introduction of Andriol testosterone supplements. The plaintiff states that he reported to Dr. Annandale that he had been troubled with more flu-like symptoms since Easter along with sharp pain in his left heel. Dr. Annandale diagnosed the new pain in the plaintiff’s left heel as plantar fasciitis also known as a "heel spur" and recommended Dr. Scholl’s shoe inserts.
  6. The plaintiff states that he took Lipitor that was provided by the defendant, Dr. Annandale, in the prescribed amounts at the prescribed time each day from on or about 16 February 2000 to 27 June 2000 when circumstances (a coma) caused the medication to be discontinued by the plaintiff.
  7. The plaintiff states that he believes his condition was in fact myalgia the direct consequence of Lipitor.
  8. The plaintiff states that the defendant, Dr. Annandale, is guilty of negligence, improper conduct and or breach of contract, that he failed to discharge his respective duties with reasonable care, skill and diligence with respect to the treatments, attendance, care and advice he gave to the plaintiff, and that the defendant failed to take reasonable care and was negligent and careless, the particulars of which are as follows:
  9. The defendant failed to inform or disclose to the plaintiff the nature, gravity and material risks of the pharmaceutical drug Lipitor and to adequately advise the plaintiff as to alternative treatments that were available;
  10. The defendant chose to ignore or failed to make himself aware of the warnings and actions prescribed by Pfizer, the manufacturer of Lipitor, in the published physicians’ monographs that were available to the defendant at the time he prescribed the drug;
  11. The defendant, when informed of the plaintiff’s condition, failed to act appropriately, or at all, as required in the circumstances and failed to provide appropriate or adequate treatments – namely to withdraw the drug Lipitor;
  12. The defendant failed to properly diagnose the unsuitability of Lipitor for the plaintiff and to instruct the plaintiff to discontinue Lipitor despite repeated opportunities to do so during the four months that the plaintiff took Lipitor while he was under the defendant’s care;
  13. In the alternative, the plaintiff states that he entered into a contract with the defendant and that a term thereof, or one that may reasonably be applied therein, was that the defendant would take all necessary precautions to ensure his safety and well being and, moreover, that he would exercise all reasonable skills and use all due and reasonable care, to assure his safety and well-being;
  14. The defendant failed in his contractual duty to the plaintiff and in this regard the plaintiff repeats all of the allegations of fact cited in this Statement of Claim;
  15. The plaintiff further repeats all the allegations of fact cited herein above mutatis mutandis with respect to the administration of the pharmaceutical drug Lipitor.

 

D. WITH REGARD TO THE DEFENDANTS AS A WHOLE:

  1. The plaintiff states that the defendants knew or ought to have known of the error in prescribing a statin drug and, therefore, that the defendants showed wilful disregard for the plaintiff’s safety and well-being because they had the opportunity to act and either neglected or chose not to do so.
  2. The plaintiff states that the defendants failed to inform him of options and risks with wanton disregard to his health and well being and the defendants did, thereby, cause the plaintiff trauma, pain and suffering.
  3. The plaintiff sustained injuries as a result of the defendants’ negligence or breach of contract including pain, neuromuscular disease and such further injuries, the particulars of which will be proven at trial.
  4. The plaintiff’s claim against the defendants is for damages, pain and suffering, and nervous shock, sustained by the plaintiff as a result of the aforementioned statin drugs. As a result of Zocor and Lipitor, the plaintiff has experienced extreme pain, difficulty walking, moving, and performing basic tasks. The plaintiff continues to suffer to this day.
  5. The plaintiff, as a result of these injuries will continue to require medical treatment including:
    1. Chronic fatigue;
    2. Chronic transient pain;
    3. Chronic weakness;
    4. Such further and other treatment, particulars of which will be proven at trial.
  6. The plaintiff states that as a result of the injuries, he has suffered and continues to suffer pain and discomfort.
  7. The plaintiff states that he has been restricted in his activities and in his enjoyment of life and ability to work. He has suffered disability and permanent disability. He claims economic loss for both the past and future.
  8. The plaintiff states that as a result of these injuries he has been restricted in his homemaking capacity and activities and claims for loss of homemaking capacity for both pre-trial and post-trial, the past and future.
  9. As a further consequence of the defendant’s negligence, the plaintiff has received medical services and treatment and, therefore, claims on behalf of the Minister of Health pursuant to The Department of Health Act, R.S.S. 1978, ch. D-17, s. 19, for the moneys paid on the plaintiff’s behalf under that Act.
  10. The plaintiff further claims interest pursuant to The Pre-Judgment Interest Act, S.S. 1984-85-86, ch. P-22.2.
  11. The plaintiff therefore claims:
    1. Non-Pecuniary damages for:
      1. pain and suffering, loss of amenities, loss of enjoyment of life; and,
      2. loss of housekeeping/homemaking capacities;
    2. Pecuniary damages including but not necessarily limited to the following:
      1. Special damages for expenses incurred including, inter alia, transportation, medical reports, and prescription medications;
      2. Loss of income;
      3. Loss of earning capacity;
      4. Loss of employment opportunity;
      5. Loss of housekeeping/homemaking capacity;
      6. Loss of future care;
      7. Loss of future medical expenses;
      8. Aggravated damages;
      9. Punitive damages;
      10. Pre-Judgment Interest;
      11. Costs of the within action; and
      12. Such further and other relief as this Honourable Court may allow.

 

DATED at the City of Regina, in the Province of Saskatchewan this ______ day of August 2003.

 

 

 

This claim was prepared by:

Morley Leonard Evans